The Issue Whether Respondent is liable to Petitioner for employment discrimination in violation of section 760.10, Florida Statutes (2018).1/
Findings Of Fact Petitioner is a 63-year-old female, who was employed by Respondent in its Child Support Program in the Tallahassee Service Center from June 9, 1997, to April 5, 2010. In 1997, Petitioner became employed as a Revenue Specialist II (“RS II”) in the Payment Processing and Funds Distribution (“PPFD”) section, where she performed financial reviews and audits of client financial accounts. On January 28, 2005, Petitioner was promoted to RS III in that section, where Petitioner continued to perform financial reviews and audits, and assumed supervisory duties, including interviewing candidates and training new employees. In that position, Petitioner was considered a PPFD team expert. At her request to “learn something new,” Petitioner was transferred to the Administrative Support section in April 2009. She was assigned half-time to the Administrative Paternity and Support (“APS”) team, and half-time to support the PPFD team. The split-time arrangement was terminated in July 2009, and Petitioner was assigned to APS full-time. On December 7, 2009, Petitioner received her first performance evaluation for her new position. The evaluation covered the time period from April 17, 2009, to January 29, 2010.2/ Petitioner’s supervisor, Katherine Osborne, rated Petitioner’s overall performance at 2.11. Petitioner was placed on a Corrective Action Plan (“CAP”) concurrent with her December 7, 2009 performance evaluation. The CAP period ended on February 8, 2010. On February 16, 2010, Petitioner was notified, in writing, that the Department intended to demote her to the position of RS II because she did not successfully complete the expectations during the CAP period, or “failed the CAP.” Petitioner exercised her right to an informal hearing to oppose the intended demotion. On March 2, 2010, Petitioner was notified, in writing, that she was being demoted to the position of RS II because she failed the CAP. Petitioner resigned from her position with the Department, effective April 5, 2010. On September 15, 2010, Petitioner filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), challenging her demotion as illegal employment discrimination. On February 12, 2011, the EEOC issued its determination, stating that it was “unable to conclude that the information obtained establishes violations of the [requisite] statutes.” Petitioner’s 2017 Applications On August 16, 2017, the Department advertised 20 openings for an RS III (position 4372) in customer service administration. Petitioner applied for the position, met the screening criteria, took and passed the skills verification test, and was interviewed for the position. Petitioner was interviewed by a selection committee composed of Tiffany Clarke, Janeen Evans, and Jonathan McCabe. Each of the three committee members rated Petitioner’s interview as “fair” on a scale which ranged from “poor,” “fair,” and “good,” to “excellent.” Petitioner was not considered for the position following her interview. While the Department made some offers to candidates, ultimately the Department did not hire any candidates for position 4372. On October 2, 2017, the Department advertised 30 openings for an RS III (position 6380) in customer service administration. The main difference between the screening criteria for positions 4372 and 6380 was in education and experience. Position 4372 required applicants to have child support experience, while position 6380 gave a preference to applicants with child support experience. The Department’s goal in revising the requirements was to increase the applicant pool in response to the advertisement for position 6380. Petitioner applied for position 6380, met the screening requirements, passed the skills verification test, and was interviewed for the position. Petitioner was interviewed by a selection committee composed of Tiffany Clarke, Lance Swedmark, and Taronza Robinson. All three committee members rated her interview as “good,” and recommended advancing Petitioner’s application for reference checks. Mr. Swedmark conducted reference checks on Petitioner’s application. During that process, he was informed of Petitioner’s prior CAP failure, demotion, and resignation. Based on that information, the selection committee determined Petitioner would not be considered for the position. Hires for Position 6380 The Department hired 30 applicants from the pool for position 6380. Of the 30 hires, 10 were over age 40. Specifically, their ages were 56, 50, 49, 49, 48, 46, 44, 43, 42, and 41. Petitioner was 61 years old when she applied for position 6380. None of the members of the selection committee were aware of Petitioner’s age when she applied, or was interviewed, for the position. The ages of the 30 new hires were compiled from human resources records specifically for the Department’s response to Petitioner’s March 2018 charge of discrimination. None of the members of the selection committee were aware of Petitioner’s 2010 EEOC complaint against the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Florida Department of Revenue, did not commit any unlawful employment practice as to Petitioner, Jacquelyn James, and dismissing the Petition for Relief filed in FCHR No. 2018-04904. DONE AND ENTERED this 16th day of July, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2019.
Findings Of Fact The Petitioner, John W. Cohen, Jr., began employment with the Respondent, Department of Health and Rehabilitative Services ("HRS") Duval Detention Center, on June 26, 1976. His position was that of Detention Care Worker I. He continued in that position as a permanent employee until his final dismissal of July 25, 1989, which is the subject of this proceeding. In the course of his employment with the Respondent, the Petitioner has complained of instances of unfair treatment on numerous occasions with both informal complaints and grievances and formal complaints. The current case arises from the Petitioner's claim that his dismissal of July 25, 1989 was discrimination in the form of retaliation, that is, the employer's alleged retaliation as the result of the previously- raised complaints and grievances. The Petitioner maintains that he first became aware that his repeated use of grievance procedures involving his employer was noticed and resented by the circulation of a cartoon in his work place, which depicted his supervisor threatening to shoot the Petitioner with a large firearm in retaliation for using grievance procedures. The Petitioner and his supervisor were named in the cartoon. The Petitioner filed a formal complaint with the Jacksonville Equal Employment Opportunity Commission on March 3, 1985 as a result of this belief. The Petitioner again felt that he had suffered disparate treatment by his supervisor, Ms. Thelma Menendez, while he worked under her supervision for the Respondent agency. Ms. Menendez found the Petitioner to be a good employee and gave him favorable performance appraisals but stated that she had a problem with the Petitioner because of his tardiness and excessive absence. The Petitioner was ultimately terminated for tardiness and excessive absence and filed a retaliation and harassment complaint with the Jacksonville Equal Employment Opportunity Commission in response to that action by the agency. It developed, apparently in the course of investigation and proceeding with regard to that complaint, that the agency's records revealed that other employees, similarly situated to the Petitioner, some of whom apparently worked on his shift, had exhibited tardiness to the same or to a greater degree than the Petitioner, and that some of them had suffered less severe discipline, as imposed by their supervisor, Ms. Menendez. The Respondent acknowledged this problem and took action by reprimanding Ms. Menendez for her failure to document and respond appropriately to abuses of leave procedures and excessive tardiness by all employees. Because the Petitioner was aware that other employees on his shift had been frequently tardy without experiencing disciplinary actions of the same severity, he filed the retaliation and harassment complaint mentioned above. This complaint ultimately culminated in a negotiated settlement agreement between the Union representatives and attorney, who represented the Petitioner, and the Respondent. This settlement reversed the termination and reduced it to an agreed-upon 30-day suspension. Apparently, the Petitioner initially refused to sign the settlement agreement because he felt that the 30-day suspension, itself, was also harassment. On two occasions, allegations of child abuse against the Petitioner were made, pursuant to Chapter 415, Florida Statutes, apparently in connection with the supervisory duties over children in custody at the Respondent's facility where the Petitioner was employed. It is standard practice with the Respondent that any employee who has such allegations made against him must be removed from supervisory duties over children whenever the allegations are pending and until they are resolved. During the investigatory and resolution process concerning such child abuse allegations, employees are customarily and routinely reassigned to another job with the agency, which does not involve direct supervision of clients or children. Such events frequently occur at the Juvenile Detention Center. On the two occasions involving the Petitioner, the Petitioner was reassigned to maintenance duties at the Respondent's facility. The Petitioner consistently protested this reassignment to maintenance duties because other employees in similar situations had not been reassigned to maintenance duties but, rather, to other employment duties, not involving maintenance. Although he protested the reassignment for this reason, he performed in the maintenance or janitorial capacity for over 13 months. The Petitioner remained in the maintenance position, pursuant to his reassignment, because of the allegations pending against him until an Order of the Division of Administrative Hearings was issued and, presumably, an agency Final Order, which removed the disqualification involving the child abuse allegations, effective July 22, 1987. Upon his second such reassignment to maintenance duties, on August 16, 1988, the Petitioner refused to climb up on the roof of the building to perform roof repair work when asked to do so by his supervisor. Instead, he filed a complaint with one of his supervisors, Sub-district Administrator Lucy Farley. In any event, because both allegations of child abuse were disproved, the Petitioner was reassigned to his normal duties as a Detention Care Worker I. The only reason for reassignment to the maintenance duties was because such removal from child supervision duties is mandatory under Department rules and policies. Although the Petitioner maintains that he was subjected to harassment of some sort because he was the only known employee who was given maintenance duties in the face of such allegations, it was established that he was reassigned to maintenance or janitorial duties because those were the only positions available in order for him to continue employment with the agency at the facility until the charges were resolved. His salary and benefits were not affected by this action. It was not demonstrated that he was singled out for reassignment to maintenance duties for any reasons of harassment, disparagement or disparate treatment of any kind. Likewise, it was not proven that the cartoon allegedly circulated in the Petitioner's work place was published by, authored by, or otherwise done at the instance of or within the knowledge of the Respondent. Thus, it cannot be probative of any intent or motive on the part of the employer to harass the Petitioner on the basis of previously- filed grievances or complaints against the employer or for any other reason. It cannot serve as evidence that the ultimate dismissal, which is the subject of this proceeding, constituted a retaliatory dismissal by the employer. On July 14, 1989, the Petitioner reported to work on the 7:00 a.m. to 3:00 p.m. shift, at the Duval Regional Juvenile Detention Center. He was performing his regular duties as a Detention Care Worker I. The client population was high in the facility at that time, and employees were generally unable to take regularly-scheduled breaks from their duties. On that morning, the Petitioner worked without a break from 7:00 a.m. to approximately 11:50 a.m. He then maintained that he felt ill and notified Mr. Arnett Morrell and Mr. Carlton Smith, his coworkers and/or supervisor, that he intended going to the staff lounge to eat. Prior to leaving his work area ("Module A"), the Petitioner advised Mr. Bernard Brock, who was the "Floor Coordinator" between "A" and "B" Modules, that he needed to go eat. He secured Mr. Brock's agreement to cover his module or duties while he took a break. The Petitioner then proceeded to "master control", the control center for the facility. At the master control station, Detention Care Worker Supervisor, Reginald Chambliss, asked the Petitioner why he had not followed proper procedures by calling the master control center before he left his module to come to master control or to leave his module for any reason. The Petitioner responded by explaining that he had secured coverage of his duties and his module from Mr. Brock and two other workers. He also stated to Mr. Chambliss that he had not had a break since 7:00 a.m. that morning and was feeling sick. After some discussion, the Petitioner advised Mr. Chambliss again that he was sick and needed to eat or that he would have to take leave time. Mr. Chambliss then gave the Petitioner his keys so that he could unlock his personal effects. The Petitioner then returned to his module to get his personal effects. The Petitioner later returned to master control to "clock out" because he had apparently decided to leave the work place. Mr. Chambliss approached the Petitioner in the vicinity of the time clock and informed him that he would not be able to authorize him taking leave time that day if the Petitioner left the building. The Petitioner moved toward the time clock in order to carry out his intention to "clock out" of the building while Mr. Chambliss was standing between him and the time clock. Mr. Chambliss repeated his instructions to the Petitioner that if he clocked out, he would not approve his taking leave. The Petitioner ordered Mr. Chambliss to get out of his way, which Mr. Chambliss did not do. Then the Petitioner apparently swore at Mr. Chambliss and said something to the effect of "I am tired of this shit" and then struck Mr. Chambliss one or more times, inflicting a cut in the vicinity of his eye. The Petitioner then apparently left the immediate vicinity of Mr. Chambliss at the master control station. Mr. Chambliss called Supervisor II, Andrea Cash, on the intercom and she came to the area of the master control station where the incident occurred. He informed Ms. Cash of the details of the incident. When Ms. Cash arrived, the altercation was over and the Petitioner appeared relatively calm, although Mr. Chambliss was still upset. Ms. Cash then contacted District Administrator, Lucy Farley, who contacted her immediate supervisor, in turn, by telephone. On instructions from her superiors, Ms. Cash ordered the Petitioner to leave the facility and not to come back. She notified all shifts verbally and by memorandum that if the Petitioner should return to the facility, the Sheriff's Office should be summoned. Mr. Chambliss was advised by superiors to press charges and did so. Ultimately, however, he and the Petitioner entered into an agreement to drop the charges; and the State's Attorney did not prosecute the assault charge. On July 27, 1989, the Petitioner was notified by Administrator, Lucy Farley, that his dismissal would be effective at 5:00 p.m. on July 25, 1989. The Petitioner met with Ms. Farley in the company of an AFSME Union Representative on July 24, 1989 apparently to discuss some sort of resolution to the conflict; however, Ms. Farley terminated the Petitioner. The Department has a policy that any assault or striking of an employee or supervisor is adequate grounds for termination. Mr. Chambliss and other supervisory personnel consider an employee assault to be an unusual and severe incident. The Petitioner was terminated for assaulting another staff member and using abusive language toward that staff member. Because the Petitioner struck his supervisor three times, causing injury to him, in an unprovoked manner, it was determined by the employer to be reasonable grounds for termination. The Department's rules and policies allow for termination for such an offense, and whether or not mitigating circumstances are considered is discretionary with the employer. The Petitioner made no showing of any disparate treatment in this regard. He made no showing that other employees had assaulted a co-employee or supervisor and had not been terminated but, rather, had been subjected to either no discipline or some lesser degree of discipline. In fact, the Petitioner did not demonstrate that any other such assault incident had occurred. The Petitioner simply showed no instances where other employees similarly situated, involved in a similar incident had been subjected to less severe discipline. Consequently, the Petitioner made no showing of a prima facie case of disparate discriminatory treatment in connection with his termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petition of John W. Cohen, Jr. be dismissed in its entirety. DONE AND ENTERED this 30th of January, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7300 Petitioner's Proposed Findings of Fact 1-4. Accepted, but not necessarily as probative of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 7-10. Accepted, but not as probative of material issues presented, standing alone. 11. Accepted, but not in itself probative of the material dispositive issues presented. 12-14. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Accepted, but not itself dispositive of material issues presented. 16-23. Accepted, but not in themselves dispositive of the material issues presented. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself dispositive of material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-28. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant evidence of record. Rejected, as immaterial. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as being immaterial. Accepted as to the first clause, but as to the second, rejected as not being entirely in accordance with the preponderant evidence of record. Rejected, as irrelevant. It was not demonstrated that other employees for whom mitigating circumstances may have been considered were similarly situated to the Petitioner in the instant case situation. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 D. Ola David Qualified Representative 600 Victory Gardens Drive Tallahassee, FL 32301 Scott Leemis, Esq. HRS District 4 Legal Office P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was not re-employed as a "mechanic-carpenter" by the Respondent school board based upon the Petitioner's age.
Findings Of Fact James W. Jones was employed from 1983 to 1993, as a mechanic-carpenter by the school board. In early 1993 he traveled to the Bicentennial Youth Park (BYP) to deliver supplies from his shop to Mr. Evans, the teacher assigned to the BYP. At that time Mr. Evans informed Jones of an upcoming opening at the BYP for a carpenters position and asked him if he would be interested in filling the position. The Petitioner replied that he would be interested. The position in question was posted and advertised as two part-time carpenter positions. Mr. Jones did not wish a part-time position and eventually the administration of BYP gained authorization and funding for a temporary, full-time position at the BYP. Mr. Jones, had been trying to leave the facilities maintenance department because of personality conflicts with his supervisor, Buel Lee. He consequently accepted the temporary, full-time position at the BYP on April 23, 1993. Prior to accepting the temporary position at BYP, the Petitioner was informed by Mr. Al Evans, Billy Wiesneski, and Terry Ellis that the position was temporary and would only last as long as funding for the position was available. In fact, Mr. Jones signed a letter, dated May 3, 1993, confirming his understanding that the position at BYP was temporary and that its duration was dependent upon the duration of funding allocated by the school board. He signed that letter in the presence of Mr. Ellis and Mr. Lee on May 4, 1993.1 Additionally, Mr. Jones admits that he signed a Notice of Personnel Action form on April 23, 1993, describing the job as temporary from April 23, 1993, to June 30, 1993, and stating that "annual re-appointment will be based on availability of project funds. . .". Mr. Jones also told a co-worker, John Driggers, that he knew the position could end in a year but that he was going to take the position anyway because by that time he would have the 10 years of service required to be vested in the pension plan. Mr. Driggers was also aware that Mr. Jones wished to transfer out of the facilities maintenance department at that time. In summary, although Mr. Jones denies that he knew the position was temporary, that is not the case, as shown by the preponderant evidence discussed in the Respondent's Proposed Findings of Fact on this subject matter. In any event, the only issue properly before the Division and the undersigned Judge, is whether Jones was not hired into a mechanic-carpenter position in the facilities maintenance department at a later date because of his age. His knowledge regarding the temporary nature of the position at the BYP is wholly irrelevant to a decision in this case because of the issues pled and noticed to the opposing party in the Petition. In any event, after voluntarily accepting that position he knew to be temporary, the funding finally ran out on March 31, 1994.2 Because funding no longer existed to support the carpenter position at BYP, the Petitioner was not re-appointed to that position and therefore his employment with the Volusia County School Board ended on March 31, 1994. Subsequently, on May 20, 1994, a mechanic-carpenter position became available in a the facilities maintenance department under the supervision of Buel Lee, for whom Jones had worked prior to taking the position at BYP. The Petitioner applied for that position. He was interviewed by Mr. Lee and considered for employment as a new applicant who had never before worked for the Respondent, as opposed to a laid-off employee under the applicable collective bargaining agreement arrangement concerning re-hire of laid-off personnel. The Petitioner was not entitled to preference in hiring normally given to laid-off employees because he had not been "laid-off." The lay-off provision in the collective bargaining agreement defines "lay-off" as "the separation of employee for lack of work or funds without any fault or delinquency on the employee's part." The lay-off provision applies only to employees who have been given an appointment for a definite duration and the funding for the position is cut by the government before the appointment naturally expires by its own terms. Since Jones was simply not re-appointed upon the natural expiration of his appointment, the lay-off provisions would not be applicable to his situation. Jones was not entitled to nor was he given preference over other applicants for the 1994 mechanic-carpenter position based on seniority because he was not the most senior applicant for the position. In fact, under the terms of the collective bargaining agreement, he lost all seniority when he terminated from employment or was not re-appointed on March 31, 1994. Therefore, when he applied for the mechanic-carpenter position 1994, he as not entitled to any more consideration than is given to a new applicant. When he applied for that position in 1994, Mr. Lee, the hiring supervisor, interviewed all applicants and made the ultimate decision to hire Walter "Ed" Hayman for the position, instead of the Petitioner. Mr. Lee interviewed every applicant for that position. He treated Jones as a new applicant rather than a laid-off or senior employee, consistent with the provisions of the collective bargaining agreement. On the other hand, Mr. Lee was required by the collective bargaining agreement to give Hayman preference over Jones since Hayman had worked for the Respondent on an uninterrupted basis since 1991. Lee had received a letter of reference from a Mr. Frye, an independent contractor and Hayman's previous employer, indicating that Hayman had worked as a journeyman for 5 years. Mr. Lee thus believed that Hayman met the qualifications for the job. Lee felt that both Hayman and Jones were skilled in carpentry and did not make his decision based upon his judgment of their respective skills in their profession. Rather, Mr. Lee made a determination that Hayman was the best qualified for the position based on his knowledge of how each of them got along with others in the work place. Mr. Lee knew, and Jones admits, that during the time that he previously worked for Lee, Gary Gallencamp requested that he not have to work beside Jones any longer. Jones admits that in fact he had a lot to do with the reasons Gallencamp did not want to work with him anymore. Lee also knew, and Jones admits, that during the time that he previously worked for Lee, another employee, Ed Owensby, requested that he not have to work with Jones any longer. In fact, he stated that he would be forced to quit if he were required to continue working with Jones. Finally, Mr. Lee called Mr. Evans, Mr. Jones' most recent supervisor, to ask him for a reference regarding Jones' performance at the BYP. Mr. Evans told Mr. Lee that Jones had trouble getting along with the maintenance man, Earl Green, when working at the BYP. Even Jones admits that he had problems with Mr. Green's work. Contrarily, Mr. Lee had observed Hayman getting along well with the co-workers during the time he performed work in conjunction with the facilities maintenance department when he was working for the Respondent as a "grounds man." Therefore, based upon personal experience and the information he received from others, Mr. Lee made the decision to hire Mr. Hayman instead of Mr. Jones. Lee never even considered the ages of Hayman or Jones when making that hiring decision. In fact, Lee himself was approximately 48 or 50 years old when he hired Hayman. Lee does not have a history of hiring younger workers. In fact, the very person Lee hired to replace Jones, when Jones transferred to the BYP, was Mr. Fred Jacobs, who was then aged 57. The only three applicants hired by Lee after Jones transferred to the BYP and before Hayman was hired, were approximately 40 years old. During that time frame, Lee hired Eric Hoffman, who was 43 or 44 years old. Jeff Straker was in his late thirties or forties, and Fred Jacobs was 57. Thus, in their totality, Mr. Lee's hiring practices do not reflect any-age related bias. In addition, neither the Respondent's pay plan, nor its pension plan, set forth in the collective bargaining agreement, are related to age. The Respondent's pay ranges are based upon job classification (i.e., mechanic-carpenter) and years of service. Upon being separated from his employment, Jones was being paid at a level commensurate with 11 years of service. Had he begun his employment with the school board immediately upon completion of his vocational training, he would have been 34 or 35 years old and earned the same salary he was making in March 1994, when he was separated from employment. Likewise the pension plan provides that every employee, regardless of age, vests after having provided 10 years of service.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That for all of the foregoing reasons, the Petitioner has not established that the school board discriminated against him because of his age in making the subject re-hiring decision. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998.
The Issue The issue is whether Respondent committed an unlawful employment practice in violation of Section 760.10, Florida Statutes, by discriminating against Petitioner based on her race.
Findings Of Fact Respondent is a financial company that owns and services student loans. Petitioner is a black female. She was employed in Respondent’s Florida Loan Servicing Center (Service Center) on two separate occasions. The first time she worked for Respondent from September 1989 until September 1990. During that time, Petitioner did not experience anything that she felt was racial discrimination at the Service Center. Petitioner left her initial period of employment with Respondent by resigning and moving to South Florida. Petitioner subsequently returned to Panama City, Florida. Initially, she worked for the Bay County School Board. Thereafter, from July 2001 to November 2001, she returned to work as a Loan Origination Representative (LOR) for Respondent through a temporary agency, Kelly Services. In August 2001, Petitioner received a training evaluation, which indicated that Petitioner was meeting all expectations. In November 2001, Petitioner converted to a regular employee position with Respondent. Petitioner received her 90-day initial review in February 2002. According to her written evaluation, Petitioner needed to improve in two areas: (a) successfully meeting the goals established during the 90-day initial review period; and (b) demonstrating initiative and resourcefulness in work performance. The evaluation states as follows in relevant part: A discussion was held with Millie regarding her productivity for application and phone call processing during the review period. At that time, Millie was placed on a verbal warning for her performance. She currently averages 3.65 applications per hour. The department standard is 5 applications per hour. Millie also currently averages 6.66 calls per hour for the review period. The department standard is 8 calls per hour. Pursuant to this evaluation, Respondent extended Petitioner's 90-day initial review period for a 30-day period in which Petitioner was required to perform according to Respondent's standards. The evaluation advised Petitioner that failure to meet standards might result in further disciplinary action, up to and including termination of employment. In March 2002, Respondent selected Petitioner to represent the National Team for Private Credit Originations. This designation required Petitioner to undergo two days of additional training. Respondent has well-disseminated policies prohibiting discrimination and harassment on the basis of race. These policies are available to employees through Respondent’s Employee Reference Manual and Code of Business Conduct. Respondent’s internal website also contains employee-related information such as policies, notices and the company’s equal employment opportunity and anti-harassment policies. Further, Respondent distributes an annual affirmation of its anti- discrimination and anti-harassment/anti-retaliation policies via e-mail. Petitioner knew of Respondent’s commitment to diversity. Petitioner became aware of Respondent’s equal employment opportunity and anti-harassment/anti-retaliation policies immediately upon being employed with Respondent. In November 2001, Petitioner received Respondent’s Employee Reference Manual, Respondent's Code of Business Conduct, and a copy of Respondent’s annual reaffirmation of its anti- harassment/anti-retaliation policies. The annual reaffirmation outlined the procedure an employee should follow to report discrimination or harassment, and provided several avenues for reporting such conduct. Petitioner was also aware that Respondent had an internal website with employee information. Respondent’s anti-harassment policy prohibits retaliation against employees who report harassment. The policy also protects employees who participate in an investigation of a claim of harassment. Petitioner knew individuals in Respondent’s Human Resources Department. For example, when Petitioner first interviewed for a job with Respondent, she met Joni Reich, Respondent’s vice president of human resources. From July 2002 to November 2002, Petitioner’s immediate supervisor was Paul Wunstell. Mr. Wunstell was Respondent's supervisor of Private Credit Originations. In early July 2002, Bobby Wiley, Respondent’s human resources director for the Service Center was counseling an employee for performance issues when the employee made an internal discrimination complaint. The employee stated that a supervisor had made a racially discriminatory comment about the Martin Luther King, Jr. holiday. The employee told Mr. Wiley that Petitioner could confirm the racially derogatory comment. On July 19, 2002, Petitioner was asked to go to the human resources department. Upon her arrival, Petitioner met Mr. Wiley for the first time. Mr. Wiley directed Petitioner to a conference room. Mr. Wiley explained that he had asked Petitioner to meet with him because he was investigating a discrimination complaint made by another employee about a supervisor who might have said something derogatory about the Martin Luther King, Jr., holiday. He explained that he had been told that Petitioner might have some knowledge about these events. Several times, Mr. Wiley asked Petitioner whether she knew of any racial discrimination at the Service Center and whether she had heard a supervisor make a racially derogatory comment. Petitioner denied being aware of any race discrimination at Respondent's facility. Petitioner stated that she did not want to talk to Mr. Wiley. Although Petitioner understood that she was required to report discrimination, she did not provide Mr. Wiley any information supporting or corroborating the complaint that he was investigating. During the meeting, Petitioner appeared nervous. She told Mr. Wiley that she was uncomfortable meeting with him. Mr. Wiley replied that their conversation would be confidential, “between the two of them,” or words to that effect. Petitioner mistakenly interpreted Mr. Wiley’s comment to mean that he would do nothing with any information provided by Petitioner and that he simply wanted to “contain” or cover up the issue of possible discrimination. Petitioner did not ask Mr. Wiley to clarify what he meant by his statement that their conversation would be “between the two of them.” During his meeting with Petitioner, Mr. Wiley conducted himself in a professional manner. However, because he was eating ice cream when he met with Petitioner and did not have a note pad, Petitioner mistakenly thought he did not take allegations of discrimination seriously. Mr. Wiley was eating an ice cream bar that had been distributed around the human resources department immediately before Petitioner came to see him. The conversation between Mr. Wiley and Petitioner lasted approximately ten minutes. Mr. Wiley thanked Petitioner for meeting with him. Mr. Wiley stated that he was glad to hear there was no discrimination at Respondent’s facility because Respondent would not tolerate discrimination. Petitioner then left the conference room. After the July 19, 2002, meeting, Petitioner never contacted Mr. Wiley to complain of discrimination or retaliation. Additionally, Petitioner’s supervisor, Mr. Wunstall, never knew about Mr. Wiley’s meeting with Petitioner. On or about July 1, 2002, Respondent advised all employees serving as LORs that they would be required to attend a training class on July 13, 2002. The purpose of the class was to ensure the proper handling of Laureate School Accounts for Private Credit Originations. Each employee needed an active Laureate computer ID and password in order to participate in the hands-on training. As instructed, Petitioner immediately advised Respondent that she did not have access to the Laureate software on her computer. On July 8, 2002, Respondent sent Petitioner an e-mail regarding her Laureate computer password. After receiving the password, Petitioner still could not gain the appropriate computer access. On July 9, 2002, Petitioner informed Respondent that she did not have the Laureate software installed on her personal computer. Respondent then made arrangements for Petitioner to test her password on another computer. Respondent also arranged to have the Laureate icon placed on Petitioner's computer. On July 23, 2002, Petitioner wrote a letter to Ms. Reich complaining about her meeting with Mr. Wiley. The letter stated that, although she had not told Mr. Wiley about it, Petitioner thought there was racial discrimination at the Service Center. Petitioner’s letter indicated that she wanted to make a statement concerning discrimination against blacks. In the letter, Petitioner requested information on Respondent’s policies and procedures to report such discrimination. Mr. Wunstell never knew that Petitioner had sent a letter to Ms. Reich complaining about racial discrimination. On July 29, 2002, Petitioner allegedly fainted at work due to panic attacks. Respondent's staff called an ambulance that took Petitioner to the hospital. Petitioner claims she was absent from work for three consecutive days without calling her supervisor and without being terminated for abandoning her job. On August 2, 2002, Petitioner received a letter from Ms. Reich. In the letter, Ms. Reich apologized for Mr. Wiley's failure to handle the meeting with Petitioner in a manner that Petitioner felt was appropriate. Ms. Reich told Petitioner that Respondent viewed discrimination complaints seriously and she included a copy of the anti-harassment policy, which outlined procedures for reporting harassment or discrimination. Ms. Reich explained several avenues to report discrimination. Ms. Reich’s letter also indicated that she and senior director of human resources, Joyce Shaw, would be in Florida within the next two weeks. In the letter, Ms. Reich asked Petitioner to meet with them to discuss her concerns and to promptly address any alleged discrimination. On August 12, 2002, Petitioner received an e-mail from Ms. Shaw to schedule a meeting on August 19, 2002. The text of the e-mail did not state the reason why Ms. Shaw and Ms. Reich wanted to meet with Petitioner, but Petitioner knew the reason for the meeting. The e-mail asked Petitioner to contact Ms. Shaw either on her cellular telephone or by e-mail to schedule the meeting. Mr. Wunstell did not have the capability to access Petitioner’s e-mail messages and there is no evidence that he saw Ms. Shaw’s e-mail. On August 19, 2002, Petitioner met with Ms. Shaw and Ms. Reich for approximately one hour. Ms. Shaw and Ms. Reich listened to Petitioner’s concerns. They were pleasant to Petitioner during the meeting. During the August 19, 2002, meeting, Petitioner first complained that Mr. Wiley had been disrespectful or inattentive during their July 19, 2002, meeting. Petitioner also told Ms. Shaw and Ms. Reich about her feelings that black employees were treated differently in the workplace. This was the first time that Petitioner discussed her race discrimination concerns with anyone who worked for Respondent. When pressed for more specific information, Petitioner stated that: (a) she felt black employees received different training than non-black employees; and (b) black employees’ questions were not answered as promptly or as thoroughly as the questions of non-black employees. Petitioner did not provide Ms. Shaw and Ms. Reich with specific examples of racially discriminatory behavior or the names of any minority employees who Petitioner felt experienced discrimination. That same day, after the meeting with Ms. Shaw and Ms. Reich, Petitioner provided Ms. Shaw with several e-mails about the Laureate computer training. The e-mails did not illustrate any mistreatment of Petitioner. During the August 19, 2002, meeting, Petitioner told Ms. Shaw and Ms. Reich that she was experiencing panic attacks. Ms. Reich suggested that Petitioner take advantage of Respondent’s employee assistance program for the alleged panic attacks. Ms. Reich and Ms. Shaw told Petitioner that they would look into her concerns. They did not tell her they would contact her again in the future. Instead, Ms. Reich gave her business card to Petitioner in case she needed to contact Ms. Reich in the future. After the August 19, 2002 meeting, Petitioner did not contact Ms. Reich or Ms. Shaw again during her employment with Respondent. During the hearing, Petitioner testified that she complained to Ms. Shaw and Ms. Reich about the following: (a) supervisor Melanie Childree's reference to the Martin Luther King, Jr. holiday as "spook day"; (b) three employees telling an African American manager not to go to the "master cube," which Petitioner felt was a racial reference to "slave talk"; (c) a hearsay statement from a student's mother who called another employee at the Service Center to accuse a white customer service representative of calling her daughter "stupid nigger"; and (d) where a black supervisor was married to a white woman, one employee allegedly said he was "going to string [the black supervisor] up for messing with our women." Apparently all of these alleged incidents occurred before Petitioner's July 19, 2002, meeting with Mr. Wiley. The most persuasive evidence regarding these allegations is that Petitioner did not report them to Ms. Shaw or Ms. Reich or anyone else in Respondent's chain of command. Instead, the complaints that Petitioner shared with Ms. Shaw and Ms. Reich on August 19, 2002, were non-specific generalizations. Moreover, Mr. Wunstell was never aware of Petitioner’s meeting with Ms. Reich and Ms. Shaw to complain about discrimination. Petitioner does not know what steps, if any, Ms. Shaw and Ms. Reich took after their meeting to look into her concerns. At the hearing, Ms. Shaw testified that she investigated Petitioner’s concerns and found them to be unfounded. First, Ms. Shaw reviewed the e-mails provided by Petitioner but did not find anything inappropriate in their contents. Second, Ms. Shaw interviewed the director in charge of Petitioner’s department, Ann Nelson. Ms. Nelson explained that the process by which employee questions were answered made it unlikely that employees could be singled out due to their race. According to Ms. Nelson, all employee questions were directed to a central telephone helpline staffed by supervisors or senior employees who randomly responded to calls. Ms. Shaw correctly concluded that it would be difficult for racially discriminatory behavior to occur in such context. Third, Ms. Nelson assured Ms. Shaw that training was the same for all employees. Student loans are heavily regulated by federal law and thus, the manner in which employees handle borrowers is regulated, making Petitioner’s concerns about unequal employee training unfounded. Finally, Ms. Shaw spoke to the person in charge at the Service Center, Renee Mang, to determine if Ms. Mang was aware of any racial discrimination concerns at the facility. Ms. Mang, whose office was in close proximity to Petitioner’s cubicle, indicated that she was not aware of any racially discriminatory behavior in the workplace and that no one had complained to her about discrimination. After the investigation, Ms. Shaw was unable to corroborate Petitioner’s racial discrimination allegations. On or about September 30, 2002, Respondent gave Petitioner a verbal warning regarding her phone quality control average. The department's expected call productivity average was 8 calls per hour at the minimum level of customer service. From July 1, 2002, to September 25, 2002, Petitioner's average was 7.5 calls per hour. Once again, Petitioner was given 30 days to meet the department's performance goal of at least 9 calls per hour at Petitioner's level of customer service. On October 8, 2002, while employed with Respondent, Petitioner applied for full-time employment with the Bay County School Board. Petitioner applied for employment in the school system because she felt a lot was going on at Respondent’s facility and her mental health counselor suggested she look for employment elsewhere. Petitioner had followed Ms. Reich’s suggestion and enrolled in mental health counseling through Respondent’s employee assistance program. Respondent accommodated Petitioner by adjusting her work schedule and allowing her to report for work late on the days she had appointments with her mental health counselor. For example, on or about October 24, 2002, Respondent requested an adjustment in her work schedule so she could attend a mental health counseling session. Respondent accommodated Petitioner's request. During the hearing, Petitioner testified that Respondent adjusted the work schedule of a white female LOR to match the work schedule of her husband who also worked for Respondent. The husband's work schedule required him to work until 7:30 p.m. every day. According to Petitioner, the schedule adjustment resulted in the white female employee having no work to perform for 30 minutes per day after the phones shut down at 7:00 p.m. However, there is no evidence that Petitioner or any other employee ever made a similar request for a work schedule accommodation under similar circumstances. On October 29, 2002, Petitioner suffered a workers’ compensation accident. A telephone headpiece flicked off and hit Petitioner across the face, resulting in an uncomfortable feeling and a small chip on her tooth. On October 30, 2002, Petitioner reported the accident to Respondent’s Benefits Specialist, Kristi Scott and requested to see a dentist. From that time on, Petitioner and Ms. Scott communicated directly with each other regarding treatment for Petitioner’s injury. Ms. Scott kept Petitioner updated on her progress locating a dentist that would accept Petitioner as a patient for a workers' compensation claim. Mr. Wunstell was not involved in arranging for treatment for Petitioner’s injury. Petitioner was not required to channel her communications with Ms. Scott through Mr. Wunstell. On October 31, 2002, Ms. Scott sent Petitioner an e-mail stating that Ms. Scott had been unable to locate a dentist who would see Petitioner as a workers' compensation patient. Ms. Scott's e-mail directed Petitioner to see any dentist of her choice to treat her injury. Ms. Scott told Petitioner that Respondent would reimburse her for any out-of- pocket expenses that resulted from her dental visit. Petitioner did not suffer immobilization as a result of the injury to her mouth and she did not have to undergo treatment as a result of her injury. Petitioner did not feel her condition was an emergency. In fact, she did not see a dentist immediately because neither her regular dentist nor other dentists considered her mouth injury an emergency. Following the October 29, 2002, mouth injury, Petitioner continued working. She worked full days the rest of the week: October 30, 2002, through November 1, 2002. On Monday, November 4, 2002, Petitioner did not show up for work. Instead, that morning Petitioner drove herself to her mental health counseling session. After her counseling session, around noon, Petitioner called Mr. Wunstell from home. During this telephone conversation Petitioner told Mr. Wunstell that she had seen a doctor in the morning. She also told Mr. Wunstell that her mouth was in severe pain, and she was trying to find a dentist who would see her. At the time of Petitioner's conversation with Ms. Wunstell, Petitioner had made appointments with two dentists. Petitioner typically worked until 7 p.m. During their noon telephone conversation, Mr. Wunstell specifically asked Petitioner whether she was planning to return to work that day. Petitioner responded that she would be returning to work later that day. Petitioner did not tell him that she was unable to work, nor did she request time off work. Petitioner alleges that she told Mr. Wunstell during their November 4, 2002, telephone conversation that her neck was bothering her, that she needed to see a doctor, in addition to a dentist, that she was unable to work and that she asked Mr. Wunstell to have Ms. Scott call her at home. The greater weight of the evidence indicates that Petitioner did not mention any of these things during her telephone conversation with Mr. Wunstell. Petitioner made no effort to obtain Ms. Scott’s telephone number. After her November 4, 2002, call to Mr. Wunstell, Petitioner made no effort to contact Ms. Scott directly regarding her workers' compensation injury, despite the fact that Petitioner and Ms. Scott had been communicating directly about the injury until that time. Petitioner did not show up for work the rest of the week of November 4, 2002. She did not call Mr. Wunstell or anyone else at Respondent’s office during the week of November 4, 2002, to inform them of her condition or her expected return to work date. Respondent has a job abandonment policy. An employee who is absent from work for three consecutive days without notifying his/her immediate supervisor will be considered to have voluntarily resigned or abandoned his/her job. Respondent’s job abandonment policy applies to all employees, including those who are injured on the job. When an employee is a no call/no show for three consecutive days, the job abandonment policy is applied in a fairly automatic manner. The employee’s immediate supervisor does not call the employee at home. Instead, the supervisor contacts Teresa Jones in the human resources department, indicates that the employee has been a “no call/no show” for three consecutive days, and directs the human resources department to send a termination letter. This type of transaction is handled by lower-ranking human resources department employees at the Service Center, and neither Mr. Wiley nor Ms. Shaw participated in the process of sending out termination letters. When Petitioner did not come to work and failed to contact Mr. Wunstell after their November 4, 2002, conversation, Mr. Wunstell instructed Ms. Jones to send Petitioner a letter informing of her termination for job abandonment. There is no evidence that Ms. Shaw, Ms. Reich or Mr. Wiley influenced Mr. Wunstell’s decision to request that Respondent send Petitioner a termination letter pursuant to the job abandonment policy. By letter dated November 8, 2002, Respondent informed Petitioner that, pursuant to the company’s job abandonment policy, she was deemed to have voluntarily abandoned her job by being absent for three consecutive days without contacting her supervisor after November 4, 2002. Respondent’s letter encouraged Petitioner to contact Ms. Jones if she had any questions regarding Respondent’s letter. Also attached to the termination letter was an Exit Interview questionnaire and postage pre-paid envelope. The questionnaire asked Petitioner to explain why she had resigned her employment. Petitioner did not return the questionnaire and made no effort to contact Respondent to protest, contest, or clarify her employment status. After receiving the November 8, 2002, letter, Petitioner did not file a petition for unemployment compensation benefits. Instead, on November 17, 2002, exactly two weeks after the last day She came to work for Respondent, Petitioner began working with the Bay County School District. Mr. Wunstell did not apply Respondent’s job abandonment policy to Petitioner for retaliatory reasons because he did not know of her alleged protected activity. Mr. Wunstell may not have terminated Petitioner in July 2002 when she was absent for three days. However, Mr. Wunstell has otherwise consistently and non-discriminatorily enforced the job abandonment policy and has terminated numerous employees pursuant to the job abandonment policy. There is no evidence that Respondent applied its job abandonment policy differently to Petitioner than it did to other employees. During the year 2002 and the first few months of 2003, Respondent terminated 28 employees pursuant to its job abandonment policy. Of these 28 employees, 25 were white, and none had complained about discrimination or participated in a discrimination investigation. Except for Petitioner's three-day absence in July 2002, there is no evidence of any other employee who violated Respondent’s job abandonment policy by being absent from work for three consecutive days without calling and who was not terminated. In January 2003, almost two months after her separation from Respondent, Petitioner wrote a letter to Al Lord, Respondent’s CEO. The letter incorrectly alleged that Respondent had not provided assistance in obtaining dental treatment for Petitioner’s on-the-job tooth injury. The letter for the first time informed Respondent that Petitioner felt she was involuntarily terminated. Unlike Petitioner’s testimony at the final hearing, the letter to Mr. Lord did not allege that Petitioner had told Mr. Wunstell on November 4, 2002, that she needed to see both a dentist and a doctor for her injury. Likewise, the letter did not allege that Petitioner asked Mr. Wunstell to have Ms. Scott call her at home. On February 11, 2003, Petitioner received a letter from Ms. Shaw. The letter informed Petitioner that she had looked into the allegations contained in the letter to Mr. Lord and had found them to be unsupported and inaccurate. Ms. Shaw's letter concluded as follows: (a) Respondent non-discriminatorily and consistently enforced its job abandonment policy; and (b) Respondent had assisted Petitioner in obtaining treatment for her dental injury. Finally, the letter questioned why, if she had not intended to voluntarily quit her job, Petitioner had made no effort to contact Respondent upon receipt of her November 8, 2002, termination letter. On March 15, 2003, Petitioner wrote a letter to Ms. Shaw. In the letter, Petitioner did not allege that she had told Mr. Wunstell on November 4, 2002, that she needed to see a doctor, in addition to a dentist, as a result of her mouth injury. Petitioner’s letter also did not state that she had asked Mr. Wunstell to tell Ms. Scott to call her at home regarding an appointment with a doctor. Petitioner filed a charge of discrimination with the FCHR on June 2, 2003. During the processing of her charge of discrimination, Petitioner complained that Respondent had improperly withheld from her last payroll check a portion of her pay for 66 hours of accrued, unused vacation time. This was the first time Respondent learned of this allegation. Although Petitioner believed that Mr. Wunstell had given instructions for Respondent to withhold a portion of her vacation pay, she never contacted Mr. Wunstell or Respondent’s human resources department to report or challenge this incorrect deduction. When, after the filing of the charge, Respondent received information about the incorrect deduction, it immediately investigated and reimbursed Petitioner for the incorrect deduction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of January, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2005. COPIES FURNISHED: Millie Carlisle 105 Detroit Avenue Panama City, Florida 32401 Luisette Gierbolini, Esquire Zinober & McCrea, P.A. Post Office Box 1378 201 East Kennedy Boulevard, Suite 800 Tampa, Florida 33601-1378 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 27, 2005.
Findings Of Fact Petitioner is an African-American female who at all times material to this case was employed with Respondent as a production worker. Respondent, Hamilton Products, Inc., manufactures various animal related products such as horse tack and pet collars and is an employer within the meaning of the Florida Civil Rights Act. Allegations of Race Discrimination Petitioner's Employment Complaint of Discrimination alleged discrimination on the basis of race and retaliation and reads in pertinent part: I believe that I have been discriminated against based on race, Black, which has resulted in discipline, unfair terms and conditions, and denial of promotion. Since 2003, I have noticed disparate treatment between White and Black employees. One example of this is that Black employees are rarely if ever promoted to management positions. Another example of this is that a Black coworker of mine, Deloise, would often harass me and when I complained to my supervisor Mrs. Robinson, she took the matter to Mrs. Lake. Mrs. Lake merely asked the woman to not do that again. This harassment continued and I repeatedly complained about it so that finally, I was moved to a different location. A similarly situated White female, Elaine, experienced similar treatment from Deloise but when she complained Deloise was stopped from repeating the behavior almost immediately. I was very upset about this obvious disparity that I contacted Mrs. Benfel and explained to her what was transpiring. She asked me to gather together my complaints and those of others which I did and submitted it to her in a letter. Almost immediately after I began to receive retaliation for my complaint. I was disciplined, verbally harassed and moved away from the other employees. Martha Robinson is a supervisor employed by Respondent for over 16 years. She was Petitioner's direct supervisor for some of the time Petitioner worked for Respondent. Ms. Robinson is a white female. A coworker, Delores,1/ who sat near Petitioner would tap her foot on a wooden box while working. Petitioner found this annoying and complained to Ms. Robinson. Ms. Robinson asked Delores to stop tapping her foot and had fleece put on the box. However, Delores continued to tap her foot. After three or four employees complained about Delores' foot tapping, Ms. Robinson took the box away from Delores and put it in Ms. Lake's office. Karen Benfield is the office manager for Respondent, where she has been employed for 19 years. Petitioner went to Ms. Benfield's office to complain about working conditions. Ms. Benfield described the complaints made by Petitioner as vague and broad-based, consisting of general assertions that employees were unhappy at work. Petitioner's complaints to Ms. Benfield did not include any allegation of racial discrimination about her or anyone else. Ms. Benfield asked Petitioner for specifics, to put her complaints on paper and she would make sure management saw it. She did not ask Petitioner to solicit comments from other employees and told Petitioner she could only speak for herself. Petitioner collected written complaints from her co- workers and delivered them to Ms. Benfield. Petitioner received a Warning Notice dated October 26, 2004, for disruptive influence on the workforce. It read as follows: The purpose of this warning is to make sure that you understand the structure of Hamilton Products and the parameters of acceptable behavior at work. Lately, you have brought a number of suggestions and grievances to the management of Hamilton Products on behalf of yourself and others. There is no single employee representative to management at Hamilton Products. You do not and may not speak on behalf of other employees. Every employee at Hamilton Products, including yourself, enjoys the right to share ideas, suggestions or grievances with management. Such communication is encouraged as long as it is made properly. There is a clear chain of command at Hamilton Products, and you must follow that chain of command when communicating with management. You must speak to your immediate supervisor or place a suggestion in the box provided for suggestions at the north end of the nylon department. It is not acceptable to go around the chain of command to a higher supervisor, as this disrupts the operations of Hamilton Products. In the future, you must follow the chain of command or use the suggestion box, and speak only for yourself. Failure to follow the procedure outlined herein will result in further disciplinary actions up to and including discharge. After the hurricanes of 2004, Petitioner's entire department was reprimanded by the plant manager for missing work. This was upsetting to Petitioner because Ms. Robinson had told these employees not to call in. She felt that Ms. Robinson should not have let him "talk trash" to the employees. There is no evidence that Petitioner or anyone else was singled out in any way by the plant manager regarding this incident. Petitioner believes that white employees were given opportunities for promotion and resulting raises. However, no employees on the production floor were promoted during the time Petitioner worked for Respondent. There is no competent evidence in the record to support Petitioner's claim that white employees received promotions and black employees did not. At some point, Petitioner was moved when the production department was reorganized. Petitioner was placed in the center of the plant, facing the rest of her department. She had no one on either side of her which resulted in her not being able to talk to coworkers while working.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 9th day of February, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2007.
The Issue In two separate Petitions For Relief From An Unlawful Employment Practice, Petitioner, George F. Carter, alleges that Respondent, State of Florida, Department of Environmental Regulation (DER), discriminated against Petitioner on the basis of his age and as retaliation for his previous filing of a complaint alleging age discrimination by DER. Petitioner alleges that as a result of the discrimination and retaliation, Petitioner was not chosen for various positions for which he applied and was given performance evaluations lower than he deserved. DER's position is that there are legitimate, non- discriminatory reasons for the actions Petitioner complains of, and that these reasons are not pretextual.
Findings Of Fact Based on the testimony of the witnesses at hearing, on the exhibits received in evidence, and on the stipulations of the parties, I make the following findings of fact. Findings based on stipulations Petitioner, George R. Carter, is an-employee of DER in the Northeast District Office in Jacksonville, Florida. Petitioner became an employee of DER after its creation in 1975. He was first employed as a Field Inspector (Position No. 0532). He was previously employed by the Board of Trustees of the Internal Improvement Trust Fund and by the Department of Agriculture. On January 3, 1977, Petitioner took a voluntary demotion (deleting lead worker status) to transfer from the Gainesville office to the Jacksonville Office (Position No. 0097). On June 15, 1977, Petitioner was promoted to an Environmental Specialist I position (0097) when his Pollution Control Specialist position was deleted. On May 16, 1980, Petitioner was promoted to an Environmental Specialist II position (No. 0532). At that time Petitioner was given a 10% salary increase. On March 1, 1982, Environmental Specialist II positions were reclassified by the Legislature as Environmental Specialist I. Petitioner was placed into the new class and given a salary increase. On October 21, 1982, Petitioner received a written reprimand for taking unauthorized leave. On July 1, 1985, Petitioner was voluntarily assigned to another ESI position (00597) in Jacksonville. On February 20, 1986, Petitioner was voluntarily reassigned to another ESI position (00524) in Jacksonville. The rest of the findings Petitioner was born February 1, 1915. On January 11, 1980, Petitioner filed a complaint with the Florida. Commission on Human Relations in which he asserted that DER had discriminated against him because of his age. On August 2, 1982, Petitioner filed a complaint with the Florida Commission on Human Relations in which he asserted that DER had discriminated against him because of his complaint of January 11, 1980. On October 19, 1976, Petitioner received a written reprimand for: (1) falsification of timekeeping records, (2) unauthorized use of a state vehicle, and (3) unauthorized leave. Petitioner was suspended without pay April 27 through April 29, 1983, for insubordination. The suspension was upheld by order of the Career Service Commission dated January 7, 1986. Petitioner has appealed the suspension to the Duval County Court. Petitioner's principal claim of age discrimination concerns his non-selection for an Environmental Specialist II position (No. 00354) in Tallahassee in 1978. Petitioner filed a grievance with DER alleging age discrimination. DER investigated the grievance and then dismissed it as unwarranted. The State Personnel Director adopted the DER recommendations and conclusions. Petitioner appealed the State Personnel Director's decision to the Career Service Commission, which assigned the case Docket No. 79-58. By order dated September 21, 1979, the Career Service Commission sustained the decision of the State Personnel Director that Petitioner's complaint of age discrimination was without foundation. In addition to that specific complaint, Petitioner broadly contends that he has been discriminated against because of his age by DER's failure to hire him for a large number of other positions for which he applied, which positions are listed on Petitioner's Exhibit No. 33A. The only basis for this aspect of Petitioner's charge of discrimination is that a younger person was chosen to fill each position. In 1979 Petitioner filed a grievance with DER alleging age discrimination regarding the positions listed in Petitioner's Exhibit No. 33A. DER investigated the charges. The investigation included an examination of interview summaries from twenty-three of the positions for which Petitioner applied. DER concluded that there was no evidence of age discrimination in the selection process. During the course of the investigation Petitioner admitted that age was never mentioned when he was interviewed for the positions. Most of the positions for which Petitioner applied were high level positions which would have involved several steps of promotion for Petitioner. It is unusual for a person in DER to be so quickly promoted without working his way through the ranks. It is a legitimate consideration when hiring a person to look at his pattern of application for positions. If a person applied for a broad range of positions without an apparent sincere interest, that would weigh negatively against the indiscriminate applicant. The positions for which Petitioner applied were in widely varied fields, e.g., hazardous waste, solid waste, dredge and fill, potable water, groundwater, coastal zone management, limnology, noise control, domestic and industrial wastewater, water analysis, water resources restoration, grant coordination, enforcement, and quality assurance. DER could have legitimately concluded that Petitioner was indiscriminately applying for positions and weighed this against Petitioner when making its selection decisions. Petitioner claims to have a Ph.D. degree in Biology from Pacific Southern University in Seattle, granted in 1976 while Petitioner was employed by DER in Gainesville, Florida. Petitioner's applications formerly listed a Ph.D. and Petitioner attached a copy of his supposed degree. Petitioner's current resume does not include a copy of his degree and notes that PSU is unaccredited. Searches by DER in 1977 and 1978 were unable to confirm the existence of PSU. The address listed on Petitioner's transcript was at the time of the search occupied by Marcia's Steno and Message Center. According to Petitioner, after discovering that PSU was unaccredited, Petitioner changed his resume to reflect that fact. Falsification or misrepresentation of credentials on an employment application can properly be a negative consideration when making a personnel decision. DER could have appropriately used this information in deciding to not promote Petitioner. An employee's history of adherence to established policies and procedures is a valid consideration when making personnel decisions. DER could reasonably have considered Petitioner's disciplinary history when making personnel decisions concerning Petitioner. Petitioner's disciplinary history would be particularly relevant to the supervisory positions he sought. Since 1980 the Petitioner has received the following performance evaluation ratings: September 1, 1980 to August 31, 1981: 6.86 September 1, 1981 to August 31, 1982: 5.6 August 31, 1982 to July 14, 1983: 4.14 July 14, 1983 to September 1, 1983: 4.93 September 1, 1983 to August 31, 1984: 5.1 September 1, 1984 to June 30, 1985: 6.0 Petitioner was rated by the same supervisor, Jeremy Tyler, from 1980 through 1985. Mr. Tyler explained that Petitioner's initial evaluation was fairly high because he had not known Petitioner for a long time and had not had a good opportunity to appraise his work. Mr. Tyler explained that he lowered Petitioner's ratings in subsequent evaluations so that they accurately reflected Petitioner's performance in relation to his co-workers. This method of rating Petitioner was in accord with a memorandum from the Secretary of DER in 1981 requiring that performance evaluations be fair and accurate, and that outstanding evaluations be given only in instances of truly outstanding work. Petitioner has been a good employee and has done acceptable work, but he has not been an outstanding employee. Petitioner's performance evaluations accurately reflect his performance. All of Petitioner's evaluations fall into the satisfactory or above satisfactory categories, (or, for the 1985 evaluation, the "achieves performance standards" category) except for the special evaluation of 4.14 which was triggered by the incident of insubordination which led to Petitioner's suspension. DER's Internal Management Policies and Procedures Manual explains that "Achieves Performance Standards" means "fully satisfactory performance or 'a job well done.'" The policy manual recognizes that the majority of the workforce should receive this rating. Some employees in similar positions did less work than Petitioner or performed their work in a less timely manner than Petitioner, but had performance ratings higher than Petitioner. This was because Petitioner's supervisor attempted to evaluate his employees relative to each other based on their total performance, not on just one facet of their performance. While some employees performed fewer inspections than Petitioner, their inspections were more complex and demanded more time. While some employees were habitually late with their inspection reports, the high quality of their reports compensated for their untimeliness and the reports were never so late as to prejudice DER. With each employee's performance taken as a whole, Petitioner's performance evaluations were fair and accurate. Petitioner is openly disdainful of authority. He frequently questions the decisions and policy choices of his supervisor and even of the Secretary of DER. In the incident that led to Petitioner's suspension for insubordination, Petitioner admitted that he wrote a letter (stating that DER would not allow development on a piece of property) in order to help a private individual escape a contract which Petitioner determined was fraudulent. Such a letter was not authorized by Petitioner's superiors, but Petitioner wrote it because he felt that it was the proper thing to do. Petitioner will frequently independently evaluate a situation and do what he believes is right, regardless of whether such action is authorized or in accordance with agency policy. Additionally, Petitioner claims, with sincerity. that he is an expert in a multitude of fields, although his claims of expertise have not been borne out by his performance or the observations of his superiors. Petitioner's broad claims of expertise reduce his credibility when he is being considered for positions, even when Petitioner actually may be competent in the subject matter of the position under consideration. Further, Petitioner is overly considerate of the needs and desires of the public, bending and breaking the rules as he feels is appropriate in order to aid members of the public seeking permits from DER. Petitioner does not apologize for his unauthorized and improper actions (such as doing construction drawings for applicants or requesting information by telephone instead of in Writing as required by DER rules); rather, Petitioner takes pride in helping citizens avoid the bureaucratic "red tape." DER has not discriminated against Petitioner on the basis of his age, nor has DER retaliated against Petitioner because of his having filed a discrimination charge against DER. DER has had legitimate, non-discriminatory reasons for denying promotions to Petitioner, and those reasons have not been pretextual. Petitioner's performance evaluation ratings have been fair and do not reflect discrimination or retaliation against Petitioner in any way.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing both of the Petitions For Relief filed by George F. Carter. DONE AND ORDERED this 12th day of May, 1986, at Tallahassee, Florida. 4 MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1986. COPIES FURNISHED: Mr. George F. Carter Post Office Box 17949 Jacksonville, Florida 32216 Paul R. Ezatoff, Esquire Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee, Florida 32303 Dana Baird, Esquire Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee, Florida 32303 Ms. Betsy Howard, Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee, Florida 32303 APPENDIX The following are my specific rulings on the proposed findings of fact contained in the post-hearing submissions of the parties. Rulings on Petitioner's proposed findings Petitioner's post-hearing document titled Suggested Stipulations For Settlement does not contain any proposed findings of fact. Accordingly, no specific rulings on proposed findings of fact are addressed to that document. Petitioner's post-hearing document titled Summary Of Appellant's Presentation contains a mixture of Petitioner's factual contentions, legal contentions, conclusions, and arguments, all of which are substantially intertwined. A large number of Petitioner's comments in the subject document are irrelevant to the issues to be decided in these consolidated cases. Similarly, much of what is included in Petitioner's post- hearing summary consists of subordinate details and unwarranted conclusions. Addressing first the top half of the first page of the summary, the factual contentions in the first three numbered paragraphs are rejected as contrary to the greater weight of the evidence and as in large part not supported by competent substantial evidence. The unnumbered paragraph addressing low morale is rejected for several reasons, including being irrelevant to the issues in this case and not supported by competent substantial evidence. With regard to the contentions at the bottom half of page one and at the top of page two to the effect that Petitioner is an "outstanding employee," the greater weight of the evidence supports a finding that Petitioner is on the whole a good employee or a satisfactory employee, but not an outstanding employee. While Petitioner certainly has some outstanding qualities, he has also displayed characteristics which detract from his job performance. Some of these characteristics are summarized in DER Exhibit No. 11. Other characteristics which contraindicate classification of Petitioner as an outstanding employee are reflected in the incidents described in the findings of fact which led to disciplinary action against Petitioner. With regard to the contentions on page two of Petitioner's summary to the effect that his evaluation was unjust, the following are my specific rulings on each of the paragraphs related to that topic. Paragraph number one is rejected because it is in part inconsistent with the greater weight of the evidence. Further it fails to take into account the quality of work, which is a major factor in evaluations. Paragraphs number two, three, four and five are rejected because they are for the most part irrelevant. They contain inferences not warranted by the evidence and are not supported by persuasive competent substantial evidence. The unnumbered paragraph at the bottom of page two is rejected as constituting argument rather than proposed findings, as not supported by competent substantial evidence, and as constituting inferences not supported by the evidence. With regard to the contentions on pages three and four of Petitioner's summary on the subject of the alleged pattern of harassment, discrimination, reprimand, and reprisal, the following are my specific rulings on each of the paragraphs related to that topic. Paragraph number one is rejected as not supported by persuasive competent substantial evidence. Paragraph number two is rejected as not supported by competent substantial evidence. Paragraph number three is rejected as not supported by competent substantial evidence. Paragraph number four is accepted in part and rejected in part. The first sentence is accepted. The second sentence is rejected as irrelevant and as not supported by competent substantial evidence. Paragraphs number five and six are rejected as irrelevant, as not supported by competent substantial evidence, and as inconsistent with the greater weight of the evidence. Paragraph number seven is rejected as not supported by competent substantial evidence. The top two unnumbered paragraphs on page four are rejected as contrary to the greater weight of the evidence. Paragraph number six at the top of page four is accepted. With regard to the contentions on page four of Petitioner's summary under the caption "REPRISALS," the following are my specific rulings on each of the paragraphs related to that topic. The first unnumbered paragraph under the subject caption is rejected as not supported by competent substantial evidence. Paragraph number one is rejected as subordinate and as irrelevant in light of other more persuasive evidence as to why Petitioner was not promoted or given higher evaluations. Paragraph number two is rejected because it consists of conclusions not warranted by the evidence, is not supported by persuasive competent substantial evidence, and is for the most part irrelevant to the issues in this case. With regard to the contentions on page four and five of Petitioner's summary under the caption "DISCRIMINATION," the following are my specific rulings on each of the paragraphs related to that topic. The first unnumbered paragraph under the subject caption is rejected because the first sentence is irrelevant standing alone and the second sentence is not supported by competent substantial evidence and incorporates inferences not warranted by the evidence. Paragraph number one is accepted in part and rejected in part. The substance of the first two sentences is accepted. The last three sentences are rejected as irrelevant in light of other evidence in the record. Paragraphs number two, three, and four are rejected as irrelevant in light of other evidence in the record. Paragraph number five is rejected because it includes conclusions not warranted by the evidence and is not supported by persuasive competent substantial evidence. Paragraph number six is rejected as irrelevant in light of other evidence in the record. The paragraphs on pages five and six under the caption "PROTEST AND SUGGESTION ON HANDLING OF GRIEVANCES" do not constitute proposed findings of fact. Rulings on Respondent's proposed findings Paragraphs 1 through 11 of Respondent's proposed findings are accepted. Paragraph 12 is rejected because it is a discussion of the issues rather than a proposed finding of fact. Paragraphs 13, 14, 15, 16, and 17 of Respondent's proposed findings are accepted. Paragraph 18 is for the most part rejected as redundant or as constituting argument rather than proposed findings. The substance of paragraphs 19, 20, and 21 is accepted. Paragraph 22 is rejected because it is a discussion of the issues rather than a proposed finding of fact. The substance of paragraphs 23, 24, and 25 is accepted with the exception of certain gratuitous editorial comments.
The Issue The issue in these cases is: a) whether the Department of Education is liable for attorneys' fees and costs incurred in the prosecution of the Rushton case (DOAH Case No. 89-1551) and b) if so, whether such fees and costs should include those incurred in the prosecution of a rule challenge styled, Florida Education Association/United and Florida Teaching Profession/National Education Association v. Department of Education, DOAH Case No. 88-0847R.
Findings Of Fact Petitioner Lewis Rushton is a person within the meaning of Section 760.02(5), Florida Statutes. Mr. Rushton is an individual within the meaning of Section 760.10(1). The Department of Education ("DOE") is a personwithin the meaning of Section 760.02(5). The School Board of Seminole County, Florida ("School Board"), which is also a person within the meaning of the same statute, was at all material times Mr. Rushton's "employer" within the meaning of Section 760.02(6). At all material times, Mr. Rushton was employed as a bus driver by the School Board, which removed him from this position on April 19, 1988. The reason for the School Board's action was that the continued service of Rushton, who was over 70 years of age, was contrary to Rule 6A-3.0141(a), Florida Administrative Code, which required mandatory retirement of bus drivers at age 70 years ("Rule"). The other Petitioners were similarly situated to Mr. Rushton. The only difference is that they were employed by different district school boards. The School Board gave Rushton the option to continue in employment as a bus monitor, which was a lower-paying job than bus driver. Rushton accepted this reassignment and experienced the resulting reduction in pay beginning the 1988-89 school year. At all material times, DOE, which promulgated the Rule, maintained standards affecting the ability of Rushton to engage in his occupation or trade within the meaning of Section 760.10(5). The Rule was part of these standards. On January 29, 1987, Rushton filed a Complaint of Discrimination, FCHR Case No. 88-5616, against the School Board. The Florida Commission on Human Relations dismissed this complaint on November 11, 1988. On May 3, 1988, Rushton timely filed and prosecuted a Complaint of Discrimination, FCHR Case No. 88-5703, against DOE. On September 7, 1988, the Florida Commission on Human Relations issued a Notice of Determination--Cause. The Notice of Determination names as the sole respondent the School Board, which had employed Mr. Rushton prior to requiring him to retire at age 70. After DOE filed a Request for Reconsideration on September 16, the Florida Commission on Human Relations issued on January 12, 1989, a Notice of Redetermination--Cause. The Notice of Redetermination names DOE as the sole respondent. The Notice of Redetermination states that DOE's "assertion that [the Rule] is an established 'bona fide occupational qualification' for employment has not been upheld." The quoted statement in the Notice of Redetermination is to a final order issued December 14, 1988. The final order found the Rule to be an invalid exercise of delegated legislative authority. The final order was the culmination of a Section 120.56 challenge to the Rule that had been prosecuted against DOE by two unions representing the Petitioners. This rule challenge was styled, Florida Education Association/United v. Department of Education, DOAH Case No. 88-0847R ("Rule Challenge"). The Florida Teaching Profession/National Education Association was an intervenor on the side of the petitioner in the Rule Challenge. Lorene C. Powell represented the petitioner in theRule Challenge, and Vernon T. Grizzard, of Chamblee, Miles and Grizzard, and the law firm of Egan, Lev & Siwica, represented the intervenor. As the final hearing in the Rule Challenge approached, DOE requested abatements of the pending cases in which individual bus drivers had sought relief under Section 760.10. At that time, the cases of all Petitioners except Mr. Rushton were pending in the Division of Administrative Hearings. The grounds for the abatements were that the decision in the Rule Challenge "would substantially affect the outcome" of the pending individual cases. Each case was abated. The parties in the Rule Challenge stipulated that various counties, due to the Rule, had not rehired bus drivers who would have been rehired but for the fact that they had attained the age of 70 years. The parties also agreed that Sections 760.10 and 112.0444 [sic], together with cited federal law, "do not permit an age limitation on employment with the exception of where such an age limitation is based on Bona Fide Occupational Qualification." The stipulated issues for determination in the Rule Challenge included "whether the 70-year old age barrier . . . is a [bona fide occupational qualification] and thus a valid exception to the state and federal ban on age discrimination based solely on chronological age." By memorandum dated January 11, 1989, DOE informed school board superintendents of the final order invalidating the Rule. By letter dated February 9, 1989, the School Boardnotified Mr. Rushton that DOE was no longer requiring enforcement of the mandatory retirement rule and he could return to work as a bus driver if he could meet certain lawful requirements. Each Petitioner was so notified by his respective school board. By Petition for Relief filed March 21, 1989, Mr. Rushton sought relief against the School Board and DOE, including a finding that mandating his retirement due to age was an unlawful employment practice, an award of back pay and associated benefits, and an award of attorneys' fees in the prosecution of the subject proceeding and such other proceedings as were necessary or appropriate to obtain the relief and apportioning the fees between the School Board and DOE. With the filing of the Petition for Relief on March 21, 1989, John Chamblee of the law firm of Chamblee, Miles and Grizzard entered his appearance for Mr. Rushton. Mr. Chamblee had been retained for Mr. Rushton by his union, the Florida Teaching Profession/National Education Association. On or shortly after May 1, 1989, the School Board settled with Mr. Rushton by agreeing to compensate him for back pay, interest, and other benefits constituting relief otherwise available under Section 760.10. Similar settlements between the other Petitioners and their respective school boards resulted in the dismissal of all claims against the various school boards.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitions for Relief in the above-styled cases. ENTERED this 2nd day of May, 1990, in Tallahassee, Florida. COPIES FURNISHED: John J. Chamblee, Jr. Chamblee, Miles and Grizzard 202 Cardy Street Tampa, FL 33606 Vernon T. Grizzard Chamblee, Miles & Grizzard 116 South Monroe Street Tallahassee, FL 32301 Sydney H. McKenzie III General Counsel Carl J. Zahner Assistant General Counsel Department of Education Knott Building Tallahassee, FL 32399 Lorene C. Powell, Assistant General Counsel FEA/United 208 W. Pensacola Street Tallahassee, FL 32301 Ned N. Julian, Jr. Sun Bank Building, Suite 22 Post Office Box 1330 Sanford, FL 32772 Tobe Lev Egan, Lev & Siwica P.O. Box 2231 Orlando, FL 32802 Norman Smith Brinson, Smith & Smith 1201 W. Emmett St. Kissimmee, FL 32741 ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1990. William H. Vogel, Assistant Superintendent Personnel and Administrative Services P.O. Box 1948 Kissimmee, FL 32742-1948 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue The issues are whether Respondent, Parkland Rehabilitation and Nursing Center (Parkland), committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, when it terminated the employment of Petitioner, Ardel Hannah, and whether it subjected Petitioner to disparate treatment on the basis of his national origin.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parkland is a rehabilitation and nursing center located at 1000 Southwest 16th Avenue, Gainesville, Florida. It is an employer as that term is defined in Section 760.02(7), Florida Statutes. Petitioner is a black male of American national origin. Although his actual date of employment is not of record, the evidence reflects that Petitioner had been employed by Parkland's maintenance department for more than ninety days when he was suspended on August 24, 2007, and then formally terminated by letter dated September 7, 2007. His primary job assignment was to repaint residents' rooms at the facility after the rooms were vacated. Petitioner's supervisor was Arthur Ellesten, Director of Maintenance, who is originally from Jamaica but is now a United States citizen. Although Mr. Ellesten has authority to hire employees in that department, he does not have authority to terminate employees. Two other workers on the maintenance staff, including Vichaun Palmer, were of Jamaican national origin. Michael Rau was the Administrator of the facility and its most senior employee. Mr. Rau has the authority to hire and terminate employees. He is of American national origin. On August 21, 2007, Mr. Ellesten verbally counseled Petitioner based on his unsatisfactory job performance. Petitioner became hostile towards Mr. Ellesten during this counseling session and swore at Mr. Ellesten. Petitioner was informed that he would be formally written up if his performance did not improve. Prior to August 24, 2007, Mr. Rau verbally counseled Petitioner on at least two occasions for his poor job performance, based on his slow progress at assigned tasks and fraternizing with female staff members for long periods of time during regular working hours. An incident occurred on August 24, 2007, which, when coupled with his prior unsatisfactory job performance, culminated in Petitioner's suspension and termination. Although the testimony regarding the incident is conflicting in many respects, the following facts are found to be the most credible. On that date, Petitioner arrived at work around 8:00 a.m. and confronted Mr. Ellesten in the courtyard of the facility. Petitioner requested Paid Time Off (PTO) for that day, which is paid leave accrued by full-time employees. Petitioner was told that he would have to request a form from Mr. Rau. Believing that Mr. Ellesten had provided PTO forms to the other Jamaican maintenance workers, Petitioner became angry and began swearing at his supervisor. Seeking to avoid a physical confrontation, Mr. Ellesten left the courtyard to return to his office on the second floor. Petitioner followed Mr. Ellesten up the stairs to the office where Petitioner verbally threatened to kill him. After Petitioner refused to leave the office, Mr. Ellesten called security, who telephoned the police department. Mr. Ellesten then departed his office, and as he was walking down the stairs, Petitioner pushed him. However, he was not injured. Petitioner left the premises a few minutes later and returned to an apartment complex where he lived. After security contacted the police department, Officer Moore was dispatched to Parkland. Mr. Ellesten requested that Officer Moore not file criminal charges against Petitioner but only give him a trespass warning. Officer Moore then went to Petitioner's apartment and issued a verbal trespass warning. This is evidenced by an Incident/Investigation Report prepared by Officer Moore. Petitioner later returned to Parkland the same day where he met with Mr. Rau to discuss the incident. During their conversation, Petitioner alleged that Mr. Ellesten had physically attacked him that morning. After Officer Moore arrived a few minutes later and joined the two, Petitioner did not repeat the allegation. Pending a further investigation of the matter, Mr. Rau suspended Petitioner. Petitioner never filed a complaint with the police department against Mr. Ellesten, and he never filed a complaint or grievance with anyone at Parkland alleging that Mr. Ellesten had attacked him, as alleged in his Petition for Relief. Also, he never informed Mr. Rau that he was treated different or unfairly by Mr. Ellesten, other members of the maintenance department, or other employees of Parkland. Finally, he never complained that the other two workers in the maintenance department were treated more favorably than he. Violence against a co-worker or supervisor is considered unacceptable conduct and by itself is a basis for termination by Mr. Rau and Parkland. As a part of his investigation, Mr. Rau questioned Mr. Ellesten about the events on August 24, 2007, obtained a written statement from Mr. Ellesten, spoke with Petitioner on August 24, 2007, and reviewed the Incident/Investigation Report prepared by Officer Moore. On September 7, 2007, Mr. Rau sent Petitioner a letter formally terminating his employment with Parkland based on the August 24, 2007, incident and "past issues related to [his] performance and conduct." There is no evidence, direct or circumstantial, that national origin was considered at any point during Petitioner's employment or that national origin played a part in his termination. Further, no credible evidence, direct or circumstantial, was submitted to show that he was otherwise subjected to disparate treatment because he was an American.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Parkland did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2008. COPIES FURNISHED: Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32399-4857 Ardel Hannah 996 Southwest 16th Avenue Apartment 904 Gainesville, Florida 32601-8483 Lauren M. Levy, Esquire Levy & Levy, LLC 4230 South MacDill Avenue, Suite 230 Tampa, Florida 33611-1901 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32399-4857
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of his race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From November 2004 until early 2008, which period includes all times relevant to this case, Petitioner Robinson Nelson ("Nelson") worked for Respondent Alutiiq-Mele, LLC ("AML") as a security guard. Nelson, who is black, alleges that on two discrete occasions, AML unlawfully discriminated against him based on race, once denying him an overtime shift which he requested, and the other time refusing to assign him "equal work hours." The first incident allegedly took place on "or about March 1, 2005." According to Nelson, he called his supervisor that day, using a telephone at his workstation, to ask that he be scheduled to work overtime on his day off. The supervisor, Nelson claims, told him that overtime had been "eliminated" and denied Nelson's request. Shortly thereafter, as Nelson tells it, the supervisor called Nelson's coworker, Nadja Abreu, and offered her the overtime that Nelson had just been denied. Nelson's story cannot be squared with AML's records, which the undersigned considers reliable and truthful and hence credits. Nelson's timesheet for the week of February 27 through March 5, 2005, shows (and it is found) that he worked all seven days that week, putting in 40 regular hours and 26 overtime hours. Ms. Abreu's timesheet for the same period shows (and it is found) that she worked four days, accruing 40 regular hours and four overtime hours. At hearing, Nelson claimed (apparently for the first time) that the telephone conversation with his supervisor regarding overtime had not occurred on or about March 1, 2005—— as he had alleged originally in his Charge of Discrimination (signed on November 20, 2005) and maintained as recently as the Joint Prehearing Stipulation (dated May 30, 2008)——but rather some two weeks later, on or about March 15, 2005. Again, however, credible contemporaneous records belie Nelson's claim. A payroll document shows (and it is found) that Nelson and Ms. Abreu each worked 40 regular hours during the week of March 13, 2005——and neither put in overtime. (Moreover, Nelson did not work on March 15 and 16, 2005, which means that, if Nelson called his supervisor on March 15, as he asserted at hearing, then he likely would not have been at his workstation at the time, which is inconsistent with his testimony that he placed the call while at work.) Regarding the second alleged incident of discrimination, Nelson claims that on Monday, October 31, 2005, shortly before 9:00 a.m., he received a telephone call at home from his supervisor, who wanted to know why Nelson had failed to report for work that morning. Nelson says he told his supervisor that he had not been scheduled to work that day, and he could not work because he was babysitting. Nelson complains that, in connection with this situation, AML "denied" him regular work hours because of his race. In addition to being facially illogical, Nelson's claim of discrimination is contradicted by reliable and persuasive documentary evidence. First, AML's payroll record shows (and it is found) that Nelson worked four hours on Sunday, October 30, and seven-and-a-half hours each day the next Tuesday through Friday, making a total 34 regular hours during the week of October 30, 2005. While this was not quite a full-time workweek, that Nelson worked fewer than 40 hours one week is not, of itself, proof that AML "denied" him six hours of work. In fact, AML did not "deny" Nelson a work opportunity, as other contemporaneous documents——not to mention Nelson's own testimony——show. In evidence are two work schedules pertaining to the week of October 30, 2005. One was printed on October 28, 2005, and the other on October 30, 2005. There are a number of differences between them; each, however, notes that "scheduled hours are subject to change as needed." On the earlier schedule, Nelson was to be off on Monday, October 31, 2005. On the subsequent schedule, he was to work from 9:00 a.m. to 4:00 p.m. that day. Had Nelson reported to work on October 31, 2005, as (ultimately) scheduled——and as he was asked to do——Nelson would have worked more than 40 hours the week of October 30, 2005. Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that AML discriminated unlawfully against Nelson on the basis of his race; or it proves, affirmatively, that AML did not, in all likelihood, unlawfully discriminate against him. Either way, it is determined, as a matter of ultimate fact, that AML did not violate the civil rights laws in its treatment of Nelson while he was an employee of AML.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AML not liable to Nelson for racial discrimination. DONE AND ENTERED this 23rd day of July, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2008. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Christine L. Wilson, Esquire Jennifer A. Schwartz, Esquire Jackson Lewis LLP One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
